United States Court of Appeals

For the Eighth Circuit

___________________________

Nos. 19-2882, 19-3134

___________________________

Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc.,

et al

lllllllllllllllllllllPlaintiffs - Appellees

v.

Governor Michael L. Parson, et al

lllllllllllllllllllllDefendants - Appellants

 ____________

Appeal from United States District Court 

for the Western District of Missouri

 ____________

 Submitted: September 24, 2020

Filed: June 9, 2021 

____________

Before KELLY, WOLLMAN, and STRAS, Circuit Judges. 

____________

KELLY, Circuit Judge.

Missouri Governor Michael L. Parson and various other state officials

(collectively, Missouri) appeal the district court’s1

 grant of a preliminary injunction

1The Honorable Howard F. Sachs, United States District Judge for the Western

District of Missouri. 
enjoining the enforcement of several abortion-related provisions of Missouri House

Bill 126 (HB 126). We affirm.

I.

Reproductive Health Services of Planned Parenthood of the St. Louis Region

and its Chief Medical Officer Dr. Colleen P. McNicholas (together, RHS) provide

reproductive healthcare—including pre-viability abortions—in St. Louis, Missouri. 

On July 30, 2019, RHS filed suit on behalf of themselves, as well as their patients,

physicians, and staff, challenging the constitutionality of several provisions of HB

126. At issue here are the “Gestational Age Provisions,” Mo. Rev. Stat. §§ 188.056-

.058, .375, and the “Down Syndrome Provision,” id. § 188.038, all of which were

scheduled to go into effect on August 28, 2019.

The first Gestational Age Provision provides, in relevant part, that “no abortion

shall be performed or induced upon a woman at eight weeks gestational age or later,

except in cases of medical emergency.” Id. § 188.056.1. Sections 188.057, 188.058,

and 188.375 are nearly identical to this first provision, except that they apply to

abortions performed at or after 14, 18, and 20 weeks gestational age, respectively. See

id. §§ 188.057-.058, .375. A provider who violates any of the Gestational Age

Provisions faces criminal prosecution and professional discipline. Id. §§ 188.056-

.058, .375. 

The Down Syndrome Provision prohibits abortions if the provider “knows that

the woman is seeking the abortion solely because of a prenatal diagnosis, test, or

screening indicating Down [s]yndrome or the potential of Down [s]yndrome in an

unborn child.” Id. § 188.038.2.2 A provider who violates the Down Syndrome

2A different section of HB 126 requires “the physician who performed or

induced the abortion” to complete “[a]n individual report for each abortion performed

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Provision is subject to a number of civil penalties, including professional discipline. 

Id. § 188.038.4. 

RHS filed a motion for preliminary injunction, asserting that these provisions

would effectively prohibit RHS from providing pre-viability abortion care in

Missouri. The district court determined that both the Gestational Age Provisions and

the Down Syndrome Provision banned—rather than merely regulated—pre-viability

abortions and found that RHS was “highly likely” to succeed on the merits as to all

these provisions. 

The district court then found that the balance of equities favored a preliminary

injunction as to the Gestational Age Provisions, but not the Down Syndrome

Provision. The court explained that, in contrast to the Gestational Age Provisions, the

record did not show that enforcement of the Down Syndrome Provision would

actually harm anyone in the months leading up to final judgment. Missouri appealed.3

In the meantime, RHS filed a motion for reconsideration (or in the alternative, a

renewed motion for preliminary injunction) of the district court’s denial of injunctive

or induced upon a woman,” which “shall include . . . a certification that the physician

does not have any knowledge that the woman sought the abortion solely because of

a prenatal diagnosis, test, or screening indicating Down [s]yndrome or the potential

of Down [s]yndrome in the unborn child . . . .” Id. § 188.052.1.

3Missouri also sought a partial stay of the district court’s order—insofar as the

order temporarily protects abortions performed at 20 weeks gestational age or

later—pending appeal. The district court denied Missouri’s request. Finding that the

requested partial stay would effectively bar about two abortions per week pending

litigation, the district court determined that it would “gravely affect[] the lives and

family situation of a few pregnant women, who would be choosing abortions during

the last available week or two before viability.” Reprod. Health Servs. of Planned

Parenthood of St. Louis Region, Inc. v. Parson, 2019 WL 4467658, at *2 (W.D. Mo.

Sept. 18, 2019). The district court’s order denying Missouri a partial stay is not on

appeal here.

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relief as to the Down Syndrome Provision. In support, RHS submitted additional

evidence—namely, a supplemental declaration from Dr. McNicholas discussing, in

part, three patients she treated in the preceding 12 months who sought abortions after

receiving a fetal diagnosis of Down syndrome.

The district court granted RHS’s motion for reconsideration and modified its

preliminary injunction to include the Down Syndrome Provision. Both orders

granting preliminary injunctive relief are now before this court. See Reprod. Health

Servs. of Planned Parenthood of St. Louis Region, Inc. v. Parson (RHS I), 389 F.

Supp. 3d 631 (W.D. Mo. 2019); Reprod. Health Servs. of Planned Parenthood of St.

Louis Region, Inc. v. Parson (RHS II), 408 F. Supp. 3d 1049 (W.D. Mo. 2019).

II.

A. 

As a preliminary matter, Missouri argues that RHS lacks both individual and

third-party standing. To establish standing under Article III of the U.S. Constitution,

a plaintiff must show “(1) injury in fact, (2) a causal connection between that injury

and the challenged conduct, and (3) the likelihood that a favorable decision by the

court will redress the alleged injury.” Young Am. Corp. v. Affiliated Comput. Servs.

(ACS), Inc., 424 F.3d 840, 843 (8th Cir. 2005) (citing Lujan v. Defs. of Wildlife, 504

U.S. 555, 560-61 (1992)). But as RHS points out, “[e]ven in cases in which the

plaintiff sues to enforce another person’s rights, the injury-in-fact requirement turns

on the plaintiff’s personal stake in the controversy.” This is because Article III

requires plaintiffs to have a “sufficiently concrete interest in the outcome of [the] suit

to make it a case or controversy.” Sec’y of State of Md. v. Joseph H. Munson Co.,

467 U.S. 947, 955 n.5 (1984) (alteration in original) (quoting Singleton v. Wulff, 428

U.S. 106, 112 (1976)). Generally, physicians have Article III standing to challenge

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abortion laws that subject them to governmental sanctions. See, e.g., Planned

Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 903-04 (1992) (plurality opinion); Doe

v. Bolton, 410 U.S. 179, 188 (1973).

Here, the Gestational Age Provisions and the Down Syndrome Provision

directly target physician conduct. Because these provisions put physicians at risk of

civil and criminal sanctions, RHS has the requisite personal stake to establish

individual standing under Article III. Moreover, RHS also has standing to sue on

behalf of its patients. See June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2118-19

(2020) (plurality opinion). The Supreme Court has “generally permitted plaintiffs to

assert third-party rights in cases where the enforcement of the challenged restriction

against the litigant would result indirectly in the violation of third parties’ rights.” Id.

(cleaned up). This is in part because the “‘threatened imposition of governmental

sanctions’ for noncompliance . . . assures us that the plaintiffs have every incentive

to ‘resist efforts at restricting their operations by acting as advocates of the rights of

third parties who seek access to their market or function.’” Id. at 2119 (quoting Craig

v. Boren, 429 U.S. 190, 195 (1976)); see also Singleton, 428 U.S. at 117 (explaining

that abortion providers can also show third-party standing based on the “closeness of

[their] relationship” with their patients, as well as on the risk of “imminent mootness”

that might pose an obstacle to pregnant patients bringing their own claims). Indeed,

the Supreme Court has recently reminded us that it has “long permitted abortion

providers to invoke the rights of their actual or potential patients in challenges to

abortion-related regulations.” June Med. Servs., 140 S. Ct. at 2118 (plurality

opinion); see Planned Parenthood of Minn., Inc. v. Citizens for Cmty. Action, 558

F.2d 861, 865 n.3 (8th Cir. 1977).4 RHS has standing, and we proceed to the merits. 

4Missouri’s argument that RHS may not file a § 1983 action is premised on its

position that RHS merely asserts the rights of third parties. Given our ruling on

standing, this argument also fails. See Ayotte v. Planned Parenthood of N. New

England, 546 U.S. 320, 324-31 (2006) (evaluating preliminary injunction of an

abortion statute on the merits in lawsuit filed under 42 U.S.C. § 1983); Pediatric

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III.

In deciding whether to issue a preliminary injunction, a district court considers

“(1) the threat of irreparable harm to the moving party, (2) the balance between this

harm and the injury that granting the injunction will inflict on the non-moving party,

(3) the probability that the moving party will succeed on the merits, and (4) the public

interest.” Planned Parenthood of Ark. & E. Okla. v. Jegley, 864 F.3d 953, 957 (8th

Cir. 2017) (citing Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.

1981) (en banc)). Here, the district court properly required RHS to “make a more

rigorous showing that it is likely to prevail on the merits,” a standard required

“[w]here a preliminary injunction is sought to enjoin the implementation of a duly

enacted state statute.” Id. at 957-58 (cleaned up). 

We review the district court’s “ultimate decision to grant an injunction . . . for

abuse of discretion, with factual findings examined for clear error and legal

conclusions considered de novo.” Brakebill v. Jaeger, 932 F.3d 671, 676 (8th Cir.

2019). An abuse of discretion occurs “when the district court relies on clearly

erroneous factual findings or an error of law.” Dixon v. City of St. Louis, 950 F.3d

1052, 1055 (8th Cir. 2020). “An abuse of discretion also occurs when a relevant

factor that should have been given significant weight is not considered; when an

irrelevant or improper factor is considered and given significant weight; and when all

Specialty Care, Inc. v. Ark. Dep’t of Hum. Servs., 293 F.3d 472, 478 (8th Cir. 2002)

(affirming district court’s holding that the physician plaintiffs “properly asserted a

federal right enforceable in a § 1983 action,” including on behalf of their patients);

Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 794-95 (7th Cir. 2013)

(affirming availability of third-party standing based on the unquestionable

“justiciability” of precedent cases “filed pursuant to section 1983” and “in which

doctors and abortion clinics were found to have had standing”). 

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proper factors, and no improper ones, are considered, but the court, in weighing those

factors, commits a clear error of judgment.” Id. (cleaned up). 

A. 

In Casey, the Supreme Court reaffirmed the right “to choose to have an abortion

before viability and to obtain it without undue interference from the State.” 505 U.S.

at 846. “Before viability, the State’s interests are not strong enough to support a

prohibition of abortion or the imposition of a substantial obstacle to the woman’s

effective right to elect the procedure.” Id. Missouri does not dispute that fetuses are

considered nonviable at or before 20 weeks gestational age. Thus, the Gestational

Age Provisions prohibiting abortions performed at or after 8, 14, 18, and 20 weeks

gestational age5 apply to pre-viability abortions. 

Nevertheless, Missouri argues that the Gestational Age Provisions do not ban

pre-viability abortions, but merely regulate them. This distinction is significant. Bans

on pre-viability abortions are categorically unconstitutional. See id. at 879; Little

Rock Fam. Plan. Servs. v. Rutledge, 984 F.3d 682, 687 (8th Cir. 2021). A restriction,

on the other hand, is permissible so long as it does not impose “a substantial obstacle”

to the right to an abortion. See Casey, 505 U.S. at 877. According to Missouri,

because the Provisions still permit pre-viability abortions before 8 weeks gestational

age, they do not constitute categorical bans. 

We have already rejected a similar argument in a nearly identical statute. In

Edwards v. Beck, the Arkansas statute at issue prohibited doctors from performing

abortions at 12 weeks’ gestation (or later) where the fetus has a detectable heartbeat. 

5This is measured as 8, 14, 18, and 20 weeks from the first day of a patient’s

last menstrual cycle. 

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786 F.3d 1113, 1115-16 (8th Cir. 2015) (per curiam), cert. denied, 577 U.S. 1102

(2016). It was undisputed that “a fetus is generally not viable under 24 weeks’

gestation, is never viable at 12 weeks, and, in all normally-progressing pregnancies,

has a detectable heartbeat by 12 weeks.” Id. at 1116. Like Missouri does now, the

State of Arkansas “trie[d] to frame the law as a regulation, not a ban, on pre-viability

abortions because they are available during the first 12 weeks (and thereafter if within

the exceptions).” Id. at 1117. But because the Arkansas law “prohibit[ed] women

from making the ultimate decision to terminate a pregnancy at a point before

viability,” it constituted a ban, not a regulation. Id.; see also MKB Mgmt. Corp. v.

Stenehjem, 795 F.3d 768, 772-73 (8th Cir. 2015) (invalidating a North Dakota fetalheartbeat restriction for the same reasons articulated in Edwards), cert. denied, 136 S.

Ct. 981 (2016).

Relying on Casey, however, Missouri nonetheless contends that the Supreme

Court has previously “upheld prohibitions on certain classes of pre-viability

abortions.” This argument lacks merit. Casey upheld, in part, requirements for

informed consent and for a 24-hour waiting period—it did not uphold a ban on all

abortions performed at certain points of a pre-viability pregnancy. 505 U.S. at 881-

87. Under those requirements, patients could still obtain an abortion at any point

before fetal viability so long as they received certain information 24 hours before

undergoing the procedure. See id. at 881. Here, by contrast, there is nothing an

individual in Missouri could lawfully do to obtain an abortion at or after the applicable

gestational age cut-off.6

 See id. at 894-95 (explaining that an abortion statute “must

6Missouri makes the same argument with respect to Gonzales v. Carhart, 550

U.S. 124 (2007). As in Casey, the statute at issue in Gonzales did not ban previability abortions; rather, it outlawed one of several medical techniques used for

performing abortions. Gonzales, 550 U.S. at 164-65. The Court concluded that “[t]he

Act [was] not invalid on its face where there [was] uncertainty over whether the

barred procedure is ever necessary to preserve a woman’s health, given the availability

of other abortion procedures that are considered to be safe alternatives.” Id. at 166-

67 (emphasis added).

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be judged by reference to those for whom it is an actual rather than an irrelevant

restriction”). These provisions do not merely have “the incidental effect of making

it more difficult or more expensive to procure an abortion” before viability. Gonzales

v. Carhart, 550 U.S. 124, 158 (2007) (quoting Casey, 505 U.S. at 874); see also id. at

157-58 (reaffirming Casey’s distinction between laws that merely make it more

difficult or expensive to get an abortion and those designed to impermissibly “strike

at the right itself” (quoting Casey, 505 U.S. at 874)). Instead, the Gestational Age

Provisions are bans, and we agree with the district court that RHS is likely to succeed

on the merits of this claim. 

B.

Missouri also characterizes the Down Syndrome Provision as a regulation of

pre-viability abortions. But a person who wants a pre-viability abortion “solely

because of a prenatal diagnosis, test, or screening indicating Down [s]yndrome or the

potential of Down [s]yndrome” in the fetus is completely prohibited from getting one. 

Mo. Rev. Stat. § 188.038.2. Unlike a regulation, the Down Syndrome Provision does

not set a condition that—upon compliance—makes the performance of a pre-viability

abortion lawful, thus preserving the constitutional right to elect the procedure. Rather,

it bans access to an abortion entirely. 

Missouri contends that the word “solely” in the statute performs a regulatory

function because it permits pre-viability abortions when the Down syndrome

diagnosis is only part of the patient’s motivation. But it is well-established that

“[w]hether or not ‘exceptions are made for particular circumstances, a State may not

prohibit any woman from making the ultimate decision to terminate her pregnancy

before viability.’” Edwards, 786 F.3d at 1117 (quoting Casey, 505 U.S. at 879); see

also Stenehjem, 795 F.3d at 772 (explaining that regulations are permissible when

they “do no more than create a structural mechanism by which the State . . . may

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express profound respect for the life of the unborn” (quoting Gonzales, 550 U.S. at

146)). Regulations on pre-viability abortions are permissible provided they do not

constitute an undue burden, see, e.g., Casey, 505 U.S. at 887-94 (rejecting a spousal

notification regulation that posed an undue burden), but bans on pre-viability

abortions are not, see Edwards, 786 F.3d at 1117. Here, the Down Syndrome

Provision would prevent certain patients from getting a pre-viability abortion at all. 

That is a ban, not a regulation.7 We agree that RHS is likely to succeed on the merits

of its challenge to the Down Syndrome Provision as well. 

C.

We turn now to the remaining Dataphase factors. See Planned Parenthood

Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008) (en banc). “At base,

the question is whether the balance of equities so favors the movant that justice

requires the court to intervene to preserve the status quo until the merits are

determined.” Dataphase, 640 F.2d at 113. 

1. 

Missouri argues that the threat of irreparable harm from allowing the

Gestational Age Provisions to go into effect is minimal because “the vast majority of

7Missouri insists that the Supreme Court, by rejecting the argument in Roe that

a woman has an absolute right “to terminate her pregnancy at whatever time, in

whatever way, and for whatever reason she alone chooses,” Roe v. Wade, 410 U.S.

113, 153 (1973), left open the possibility that states may ban pre-viability abortions

sought for prohibited reasons. This argument is unavailing if only because it ignores

“Roe’s central holding,” reaffirmed in Casey, “that viability marks the earliest point

at which the State’s interest in fetal life is constitutionally adequate to justify a

legislative ban on nontherapeutic abortions.” 505 U.S. at 860. 

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women already obtain abortions prior to the later benchmarks, and many of the

remaining women undoubtedly could do so by seeking abortions earlier in

pregnancy.” The accuracy of this claim aside, Missouri’s focus on the number of

women unaffected by the Gestational Age Provisions is misplaced. The irreparable

harm analysis turns on the nature of the injury likely to result from the challenged

action, not the number of people who would be injured. See Hinz v. Neuroscience,

Inc., 538 F.3d 979, 986 (8th Cir. 2008) (defining an irreparable injury as an injury “of

such a nature that money damages alone do not provide adequate relief”); see also

Kroupa v. Nielsen, 731 F.3d 813, 820-21 (8th Cir. 2013) (finding the threat of

reputational harm to a single individual to be irreparable). Missouri does not dispute

that the 20-week Gestational Age Provision would prohibit about 100 abortions each

year in Missouri, or that the 8-week Provision would prohibit approximately half of

all reported abortions in the state—and for purposes of the irreparable-harm inquiry,

the prohibition of even a single pre-viability abortion would suffice. The district court

concluded that this was “a significant interference with plaintiffs’ service and the

rights of its prospective patients,” RHS I, 389 F. Supp. 3d at 638, and Missouri offers

nothing to counter that conclusion.

The threat of irreparable harm posed by the Down Syndrome Provision is a

closer call, but nevertheless weighs in favor of RHS. After receiving a supplemental

declaration from Dr. McNicholas, the district court found that “at least a small number

of women” would be affected by this provision. On appeal, Missouri argues that RHS

failed to show that any patients seek abortions based “solely” on prenatal diagnoses,

or potential diagnoses, of Down syndrome.8 But RHS is not required to prove with

certainty the threat of irreparable harm. The standard merely requires “plaintiffs

seeking preliminary relief to demonstrate that irreparable injury is likely in the absence

8This argument is curious, as it suggests that the Missouri legislature passed a

statute to ban abortions for a category of patients that may not, or at least may not

currently, exist. 

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of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). 

Missouri has offered no evidence to rebut the district court’s finding that “the facts

reviewed show a very high likelihood” of a “Down [s]yndrome motivated abortion

request during litigation.” RHS II, 408 F. Supp. 3d at 1052.

Moreover, Dr. McNicholas said that if the Down Syndrome Provision takes

effect, (1) she and other physicians in Missouri would “face unjustifiable risk in

providing abortion care to patients if [they] know that a patient has had” a prenatal

diagnosis, or a potential diagnosis, of Down [s]yndrome, and (2) as a result, “[i]f a

patient with a Down [s]yndrome diagnosis seeks services . . . [they would] be forced

to turn her away and advise her that she cannot get this care in Missouri.” The district

court did not clearly err in finding that “the most likely scenario, from plaintiffs’

filings, would be the provider’s declining a requested abortion, in terrorem.” Id. at

1053.9 And while the Down Syndrome Provision might impact fewer people than the

9The dissent characterizes RHS’s claimed harm as a self-inflicted response to

a “speculative risk of sanctions” and disputes the district court’s finding of irreparable

harm on that basis. But the district court did not rely on a “speculative risk.” Rather,

after hearing argument and considering the evidence, the district court made a factual

finding that the Down Syndrome Provision would likely be enforced against RHS

even where the medical provider knows only of “a Down syndrome diagnosis (or even

a strong suspicion based on testing)”—that is, even absent certain knowledge that the

patient is seeking an abortion “solely” because of Down Syndrome. RHS II, 408 F.

Supp. 3d at 1052; cf. Alexis Bailly Vineyard, Inc. v. Harrington, 931 F.3d 774, 778

(8th Cir. 2019) (conducting injury-in-fact inquiry for purposes of standing and

distinguishing Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013), from cases where

the plaintiffs “are themselves the objects of a challenged statute” and thus, “must

merely allege an intention to engage in a course of conduct arguably affected with a

constitutional interest, but proscribed by a statute, [where] there exists a credible

threat of prosecution thereunder.” (cleaned up)). RHS’s inability to provide previability abortions to patients with a fetal diagnosis (or suspected diagnosis) of Down

Syndrome due to a real threat of prosecution results in a likelihood of irreparable harm

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Gestational Age Provisions, the nature of the harm—the inability to obtain an abortion

before fetal viability—is at least equally significant. Thus, the district court concluded

that absent a preliminary injunction, RHS would be unable to provide pre-viability

abortions both to the patients who would otherwise obtain one “solely” on the basis

of a fetal diagnosis of Down [s]yndrome, and to the patients for whom the diagnosis

is only part of the motivation, causing both types of patients to lose “the

Constitutional right to which [they are] currently entitled.” Id. Because the district

court’s carefully considered “finding . . . is plausible in light of the full record,” it

“must govern.” June Med. Servs., 140 S. Ct. at 2128 (plurality opinion) (cleaned up)

(quoting Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017)).

2.

The remaining two factors—the balance of hardships and the public

interest—also weigh in favor of RHS as to the Down Syndrome Provision and the

Gestational Age Provisions.

Missouri contends that “the harms inflicted on the State and innocent third

parties from enjoining the enforcement of HB 126 would be extremely severe”

because an injunction would prevent the State from advancing “compelling state

interests,” including “the loss of innocent human life.” As the district court

appropriately acknowledged, “federal courts should generally be very cautious before

delaying the effect of State laws.” RHS I, 389 F. Supp. 3d at 637. Nonetheless,

Missouri has failed to demonstrate that its policy priorities outweigh (1) the public

to those patients. Though the dissent may “have weighed the evidence differently,”

that is not enough to make the district court’s finding clearly erroneous. Anderson v.

City of Bessemer City, 470 U.S. 564, 574 (1985).

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interest in access to pre-viability abortions, or (2) the significant interference with

RHS’s business and the harm to pregnant individuals who might seek a pre-viability

abortion before final judgment in this case. See RHS II, 408 F. Supp. 3d at 1052

(“[T]he State Defendants have not and are unlikely to belittle the significance of even

a few abortions during litigation . . . .”); cf. Brady v. Nat’l Football League, 640 F.3d

785, 792-94 (8th Cir. 2011) (granting stay of district’s order pending appeal even

where both parties were “likely to suffer some degree of irreparable harm” because

the movant made a “strong showing that it is likely to succeed on the merits”); Little

Rock Fam. Plan. Servs. v. Rutledge, 397 F. Supp. 3d 1213, 1322 (E.D. Ark. 2019)

(finding that enjoining abortion regulations would not irreparably harm State because

“the State has no interest in enforcing laws that are unconstitutional” (citing Hisp. Int.

Coal. of Ala. v. Governor of Ala., 691 F.3d 1236, 1249 (11th Cir. 2012))), aff’d in

relevant part, 984 F.3d 682 (8th Cir. 2021). 

For these reasons, we find no error in the district court’s conclusion that the

balance of the equities favors injunctive relief.

IV.

Because the district court did not abuse its discretion in granting preliminary

injunctions enjoining enforcement of the Gestational Age Provisions and the Down

Syndrome Provision, we affirm.

STRAS, Circuit Judge, concurring in the judgment in part and dissenting in part.

A preliminary injunction is hard to get, all the more so when the target is a

democratically enacted state law. See Planned Parenthood Minn., N.D., S.D. v.

Rounds, 530 F.3d 724, 732–33 (8th Cir. 2008) (en banc). The court makes it easy,

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however, by relaxing the rules to let Reproductive Health Services10 have one,

despite its failure to show a “threat of irreparable harm” from Missouri’s Down

Syndrome Provision. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th

Cir. 1981) (en banc). I would apply the usual rules and vacate the injunction. 

I.

Under Missouri’s Down Syndrome Provision, no one may perform an

abortion with “know[ledge] that the woman is seeking [one] solely because of a

prenatal diagnosis, test, or screening indicating Down Syndrome or the potential of

Down Syndrome in an unborn child.” Mo. Rev. Stat. § 188.038.2 (emphasis

added). Even before the law took effect, Reproductive Health Services challenged

it and requested a preliminary injunction to prevent state officials from enforcing it

against anyone. See Rodgers v. Bryant, 942 F.3d 451, 460–65 (8th Cir. 2019)

(Stras, J., concurring in part and dissenting in part) (highlighting the problems with

universal injunctions).

The district court initially refused to grant one because Reproductive Health

Services had not shown that “the inability to schedule ‘Down [S]yndrome

abortions’ would be likely to interfere with the abortion rights of real-life women.” 

In plain English, the court was saying that there was no evidence that the law

would create any real-world harm, or even a threat of it. It left the door open,

however, if the clinic could come up with something more. 

The more came in the form of a supplemental declaration by the clinic’s

chief medical officer, Dr. Colleen McNicholas, who said: 

10“Reproductive Health Services” refers collectively to the plaintiffs in this

case: Reproductive Health Services of Planned Parenthood of the St. Louis Region,

Inc., which claims to be “the only generally available source of abortion care in

Missouri,” and Dr. Colleen P. McNicholas, the facility’s chief medical officer and an

abortion provider.

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[W]ithin approximately the last 12 months, I do specifically recall that

three of the patients that I treated in Missouri had received a fetal

diagnosis of Down [S]yndrome.

. . .

I also recall that I provided abortion care to numerous other patients

that had received a fetal diagnosis—I would estimate approximately

one to four cases per week over the past year—but cannot recall

whether that diagnosis was Down [S]yndrome or another genetic or

structural anomaly, if I had that information at the time. Because

Down [S]yndrome is the most common fetal aneuploidy, it is likely

that some of these other instances did involve such a diagnosis.

(Footnote omitted). This declaration was enough for the district court to have a

change of heart. Combining the declaration with its own “[c]ommon

understanding,” and taking “judicial notice” of the fact that a woman would

“often” receive “a Down [S]yndrome diagnosis” with “dismay,” the court

“suppose[d] that” some of these women requested an abortion because of it. If so,

the court said, others likely would too, and the law would threaten the ability of

real-life women to get one, creating the threat of irreparable harm that was missing

before. Whether more is required to grant a preliminary injunction is the question

posed to us today. See Rounds, 530 F.3d at 732 n.5.

II.

“A preliminary injunction is an extraordinary remedy . . . .” Watkins Inc. v.

Lewis, 346 F.3d 841, 844 (8th Cir. 2003). In deciding whether one is appropriate,

there are four factors to consider: “(1) the likelihood of the movant’s success on

the merits; (2) the threat of irreparable harm to the movant in the absence of relief;

(3) the balance between that harm and the harm that the relief would cause to the

other litigants; and (4) the public interest.” Id. The problem for Reproductive

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Health Services is that it never established a “threat of irreparable harm, . . . an

independently sufficient ground upon which to deny a preliminary injunction.” Id.

A threat of irreparable harm is exactly what it sounds like: “a party must

show that the harm is certain and great and of such imminence that there is a clear

and present need for equitable relief.” Roudachevski v. All-Am. Care Ctrs., Inc.,

648 F.3d 701, 706 (8th Cir. 2011) (quotation marks omitted). This is no small

task. At a minimum, Reproductive Health Services had to show that the law was

likely to prevent a woman from getting an abortion she otherwise would have

lawfully received. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22

(2008) (explaining that “likely” harm is enough). 

The Down Syndrome Provision itself tells us how the harm would have to

occur. See Mo. Rev. Stat. § 188.038.2. It is not enough for a woman to receive a

prenatal diagnosis, test, or screening of Down Syndrome (or the potential for it) in

an unborn child and then seek an abortion. Rather, for the statute to apply, (1) the

abortion must be “solely because of” it; and (2) the provider must actually

“know[]” of that fact. Id. Even when providers are aware of a positive Down

Syndrome diagnosis, for example, nothing prevents them from performing an

abortion if they know nothing more. Nor is there any restriction when providers

know that the diagnosis is one reason for the abortion but remain in the dark about

whether there are others.

Contrast these requirements with what Dr. McNicholas said in her

declaration. According to her, she treated three women who “had received a fetal

diagnosis of Down [S]yndrome” over “the last 12 months,” and it was “likely” that

there had been others too. The declaration is conspicuous for what it does not say. 

Nowhere does it mention whether any of these women sought an abortion “solely

because of” their prenatal diagnoses, much less whether she knew it at the time. 

Id. Both are required for Missouri’s Down Syndrome Provision to apply. See id.

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A.

Causation poses the biggest hurdle for Reproductive Health Services. No

matter how many of Dr. McNicholas’s patients have received a positive Down

Syndrome diagnosis—three, three hundred, or three thousand—nothing in her

declaration establishes that any of them sought an abortion solely because of it. 

See id.

The burden of establishing entitlement to a preliminary injunction always

rests with the party seeking one. See Watkins Inc., 346 F.3d at 844. There may

well be women in Missouri who terminate their pregnancies solely because of a

positive Down Syndrome diagnosis, test, or screening, but the problem is that

Reproductive Health Services has not identified any of them. It instead asks us to

fill in the gaps—basically, guess—that there are women out there who do so,

despite the variety of “health, family, financial, [and] other personal reasons” that

can factor into a decision to terminate a pregnancy. Preterm-Cleveland v.

McCloud, 994 F.3d 512, 526 (6th Cir. 2021) (en banc) (plurality opinion). Courts

are not supposed to grant injunctions based on guesses.

The district court decided to guess anyway. When Dr. McNicholas failed to

say whether any of the women she treated had sought an abortion solely because of

a positive diagnosis, the court used its imagination:

[c]ommon understanding and judicial notice would conclude that a

Down [S]yndrome diagnosis (or even a strong suspicion based on

testing) would often be received with dismay by a pregnant woman

and any family members. If an abortion were sought thereafter, most

of us, including an abortion provider, would suppose that the

diagnosis was the principal cause of the request, and that a jury or

licensing agency would have little trouble with the “sole cause”

requirement for a violation. As the Chief Justice recently observed,

quoting Judge Friendly, “we are not required to exhibit a naiveté from

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which ordinary citizens are free.” Dept. of Commerce v. New York,

139 S. Ct. 2551, 2575 (2019).

(Emphasis added).

These “[c]ommon[ly] underst[ood]” facts are ones that Dr. McNicholas, who

performs hundreds of abortions a year, apparently could not say herself. I find it

hard to believe that the district court knows more about the motivations of her

patients than she does. And this “[c]ommon understanding” is remarkable for

another reason: it assumes that children with Down Syndrome are unwanted. The

irony is not lost on me, for this is the very discrimination that Missouri seeks to

prevent.

Nor does “judicial notice” advance the ball. It applies to obvious

facts—those that are “capable of . . . instant and unquestionable demonstration.” 

United States v. Gould, 536 F.2d 216, 219 (8th Cir. 1976) (quoting 9 John Henry

Wigmore, Evidence § 2571, at 548 (1940)). A court may well be able to take

judicial notice of a straightforward fact like the total number of women who live in

Missouri, but not the reasons why some of them have abortions. It is neither

obvious nor “unquestionable,” id., despite what the district court may have

believed, that a woman would receive a positive Down Syndrome diagnosis “with

dismay” and then abort her unborn child solely because of it. These are facts that

must be proven, not “suppose[d].” 

B.

Missouri’s Down Syndrome Provision requires more than just an ultra-strict

causal link. The provider actually has to know that the link is present. See Mo.

Rev. Stat. § 188.038.2. Absent knowledge that a Down Syndrome diagnosis is the

sole reason for an abortion, the statute does not apply. See id.

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Dr. McNicholas all but admits in her declaration that she has no idea how

many women, if any, seek an abortion solely for that reason. See id. Consider her

words carefully. In addition to never identifying any women who sought abortions

“solely because of” a Down Syndrome diagnosis, she goes on to say that “there is

generally no medical need for [her], or any other physician providing abortion care

at [the clinic,] to know a patient’s reason for seeking an abortion or to distinguish

between one particular fetal diagnosis or another in order to provide

compassionate, safe abortion care.” If there is no medical reason to ask, and no

evidence that the reason for seeking an abortion is routinely volunteered, then the

statute itself cannot create the “threat of irreparable harm.” Dataphase Sys., Inc.,

640 F.2d at 114.

Rather, the harm comes from Dr. McNicholas herself, or at least her view of

the law. She claims that, if she learns of any fetal anomaly, then she will have to

ask whether it is Down Syndrome, just because of the “legal risk” involved. If a

woman then admits that her unborn child has a positive Down Syndrome

diagnosis, Dr. McNicholas will “turn her away and advise her that she cannot get

this care in Missouri.” This statute-made-me-do-it theory would make sense if the

statute made her do it. But it does not.

Nothing in the Down Syndrome Provision requires Dr. McNicholas to ask

about fetal diagnoses or “turn . . . away” women who reveal one. See Mo. Rev.

Stat. § 188.038.2. And with no medical reason to inquire, it is her choice to ask the

question. Then, if a woman answers by saying she has received a positive Down

Syndrome diagnosis, it is again Dr. McNicholas’s choice not to perform the

abortion, assuming the woman has not told her that the diagnosis is the sole reason

she is seeking it. We cannot enjoin a law based on what someone thinks it says,

rather than what it actually says. Cf. Clapper v. Amnesty Int’l USA, 568 U.S. 398,

416 (2013) (explaining that plaintiffs “cannot manufacture standing merely by

inflicting harm on themselves based on their fears of hypothetical future harm that

is not certainly impending”).

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Perhaps what Dr. McNicholas is really trying to say is that the statute will

“chill” her practice, based on the potential legal risk involved, even if she cannot

identify anyone who would be directly affected by it. Cf. Republican Party of

Minn., Third Cong. Dist. v. Klobuchar, 381 F.3d 785, 791–93 (8th Cir. 2004). The

court seems persuaded:

The district court did not clearly err in finding that “the most likely

scenario, from plaintiffs’ filings, would be the provider’s declining a

requested abortion, in terrorem.” . . . Thus, the district court

concluded that absent a preliminary injunction, [the plaintiffs] would

be unable to provide pre-viability abortions both to the patients who

would otherwise obtain one “solely” on the basis of a fetal diagnosis

of Down [S]yndrome, and to the patients for whom the diagnosis is

only part of the motivation, causing both types of patients to lose “the

Constitutional right to which [they are] currently entitled.”

Ante at 12–13 (emphasis added) (second and third brackets in original).

Even if this reasoning sounds plausible, there are obvious problems with it. 

A chilling effect can only support a claim if a statute is vague or overbroad, and

even then, only when the challenge is brought under the First Amendment. See 1

Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech §§ 6:4, 6:14 (2021);

see also Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002) (overbreadth);

Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 871–74 (1997) (vagueness). It is

tied to an exceptionally narrow doctrine that allows a party to establish an injury

through the “deterrent effect” a law has on protected expression, but only if the

chill is “objectively reasonable.” Republican Party of Minn., 381 F.3d at 792

(quotation marks omitted); see Balogh v. Lombardi, 816 F.3d 536, 541–42 (8th

Cir. 2016). The problem is that abortions are not protected expression, Missouri’s

Down Syndrome Provision is not vague or overbroad (nor is there any claim that it

is), and the chill is not an objectively reasonable response to the statute. The point

is that Dr. McNicholas cannot threaten to cause the harm herself by overcorrecting

her own behavior to avoid the speculative risk of sanctions. See Salt Lake Trib.

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Publ’g Co. v. AT&T Corp., 320 F.3d 1081, 1106 (10th Cir. 2003) (“We will not

consider a self-inflicted harm to be irreparable . . . .”); Caplan v. Fellheimer Eichen

Braverman & Kaskey, 68 F.3d 828, 839 (3d Cir. 1995) (“If the harm complained of

is self-inflicted, it does not qualify as irreparable.”).

The court’s response brings to mind the classic game of telephone. Dr.

McNicholas said only that some of her patients have had abortions after receiving a

Down Syndrome diagnosis. The district court then put its own gloss on her

statement when it used its “[c]ommon understanding and judicial notice” to

announce that “a jury or licensing agency would have little trouble with the ‘sole

cause’ requirement for a violation” if a woman sought an abortion in those

circumstances. Today, the court adds yet another gloss by declaring that the

district court found “that the Down Syndrome Provision would likely be enforced

against [Reproductive Health Services] . . . even absent certain knowledge that the

patient is seeking an abortion ‘solely’ because of Down Syndrome.” Ante at 13

n.9. Just like in the telephone game, the message in the end bears little

resemblance to the message at the start. Dr. McNicholas did not say any of these

things, and the district court did not actually make a factual finding. Indeed, the

district court relied on “[c]ommon understanding and judicial notice” precisely

because there was no evidence on these points.11 See Fed. R. Civ. P. 52(a)(6)

(providing that the clear-error standard applies to findings “based on oral or other

evidence” (emphasis added)); see also Am. Prairie Constr. Co. v. Hoich, 560 F.3d

780, 796 (8th Cir. 2009) (reviewing a “decision to take judicial notice [of a fact]

for abuse of discretion”). 

Reproductive Health Services wants us to fill in the gaps on causation and

knowledge through guesswork. That is not how preliminary injunctions work. It

had the burden to connect all the dots for us, and its failure to do so provides

reason enough to vacate the preliminary injunction. See Watkins Inc., 346 F.3d at

11As for the district court’s actual findings, I agree that not a single one of them

is clearly erroneous. They simply fall short of justifying a preliminary injunction.

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844 (explaining that failure to establish a threat of irreparable harm “is an

independently sufficient ground upon which to deny a preliminary injunction”). 

III.

Nothing in Little Rock Family Planning Services v. Rutledge, 984 F.3d 682

(8th Cir. 2021), is to the contrary. In Rutledge, a panel of this court concluded that

the plaintiffs were likely to succeed on the merits of a challenge to a similar

Arkansas statute. See id. at 688–90. Even if Rutledge creates a likelihood of

success on the merits here, Reproductive Health Services is still not entitled to a

preliminary injunction without showing a threat of irreparable harm. See

Dataphase Sys., Inc., 640 F.2d at 114 n.9. 

In any event, I think there is reason to doubt whether Rutledge was correctly

decided, even if this panel has to follow it. See Mader v. United States, 654 F.3d

794, 800 (8th Cir. 2011) (en banc) (“It is a cardinal rule in our circuit that one

panel is bound by the decision of a prior panel.” (quotation marks omitted)); see

also Preterm-Cleveland, 994 F.3d at 516, 535 (concluding that a challenge to a

similar, but even more restrictive, law was not likely to succeed on the merits). It

treated Arkansas’s Down Syndrome Provision as a “complete prohibition o[n]

abortions”—a “ban,” so to speak—not just a “regulation.” Rutledge, 984 F.3d at

688–90. This distinction is critical because, under our precedent, a pre-viability

ban is categorically unconstitutional. See id. at 687–88; MKB Mgmt. Corp. v.

Stenehjem, 795 F.3d 768, 772–73 (8th Cir. 2015); Edwards v. Beck, 786 F.3d 1113,

1117 (8th Cir. 2015) (per curiam). A pre-viability regulation, on the other hand, is

only unconstitutional if it has the “purpose or effect” of “plac[ing] a substantial

obstacle in the path of a woman seeking an abortion.” Gonzales v. Carhart, 550

U.S. 124, 146 (2007) (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833, 878 (1992) (plurality opinion)).

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We have not made it easy to tell the difference between the two. In

Edwards, we explained that a ban “prohibits women from making the ultimate

decision to terminate a pregnancy.” 786 F.3d at 1117. A regulation, by contrast,

has only an “incidental effect” on the decision by “making it more difficult or more

expensive to procure an abortion.” Gonzales, 550 U.S. at 158 (quoting Casey, 505

U.S. at 874 (plurality opinion)). The distinction is only complicated by the fact

that a regulation can easily be reframed as a ban: if its requirements are not met,

then a woman will be “completely prohibited” from having an abortion. Ante at 9.

As slippery as the dividing line seems to be, if I were writing on a blank

slate, I would conclude that Missouri’s Down Syndrome Provision is a regulation. 

Recall that it says that “[n]o person shall perform or induce an abortion on a

woman if the person knows that the woman is seeking the abortion solely because

of a prenatal diagnosis, test, or screening indicating Down Syndrome or the

potential of Down Syndrome in an unborn child.” Mo. Rev. Stat. § 188.038.2. 

Interpreting the statute as an ordinary person would, see Wis. Cent. Ltd. v. United

States, 138 S. Ct. 2067, 2070 (2018), all it does is limit the reasons for an abortion

in certain narrow circumstances. As long as a woman has at least two reasons for

seeking an abortion, or her provider never knows that a positive Down Syndrome

diagnosis, test, or screening is her sole reason for getting one, “the ultimate

decision” still lies with her. Edwards, 786 F.3d at 1117 (quoting Casey, 505 U.S.

at 879 (plurality opinion)). The statute is, in other words, a regulation, not a ban. 

See id.

An example may help. Title VII of the Civil Rights Act of 1964 makes it

unlawful “for an employer . . . to discharge any individual . . . because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). No one would suggest that Title VII is a ban on firing employees. Even

under Title VII’s broad language, which requires the reason to be

nondiscriminatory, “the ultimate decision” to terminate someone still rests with the

employer. Edwards, 786 F.3d at 1117 (quoting Casey, 505 U.S. at 879 (plurality

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opinion)); see Berg v. Norand Corp., 169 F.3d 1140, 1146 (8th Cir. 1999) (noting

that “[t]he employment-at-will doctrine, allowing an employer to terminate an

employee for any lawful reason, is [still] alive and well”).

The same is true of Missouri’s Down Syndrome Provision. Women remain

free to terminate their pregnancies for nondiscriminatory reasons. Indeed,

Missouri’s law is even more permissive than Title VII in at least two respects: an

abortion is still available, even after a positive diagnosis, test, or screening, as long

as (1) the provider does not know why a woman is seeking an abortion; or (2) the

discriminatory reason is accompanied by at least one nondiscriminatory reason. 

Compare Mo. Rev. Stat. § 188.038.2 (setting out the “solely because of”

requirement), with 42 U.S.C. § 2000e-2(m) (prohibiting discriminatory

employment practices “even [when] other factors also motivated the practice”). 

Just like Title VII does not “ban” employers from firing employees, neither does

Missouri’s law “ban” women from terminating their pregnancies. Rutledge,

unfortunately, seems to foreclose this common-sense analysis. 

IV.

I would accordingly vacate the preliminary injunction against Missouri’s

Down Syndrome Provision.

______________________________

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